O'Rourke v Department of Education and Skills

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 18 December 2019
• Neutral Citation: [2019] IEHC 938
• Docket Number: [2017 No. 610 JR]
• Court: High Court
• Date: 18 December 2019

BETWEEN

ENDA O'ROURKE

APPLICANT

AND

THE DEPARTMENT OF EDUCATION AND SKILLS

RESPONDENT

[2019] IEHC 938

[2017 No. 610 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Pension scheme – Time – Applicant seeking judicial review – Whether it was lawful for the respondent to remove the applicant from the Secondary, Community and Comprehensive School Teachers Pension Scheme 2009 and enrol him in the Single Pension Scheme

Facts: The High Court (Heneghan J), on 24 July 2017, gave leave to the applicant, Mr O’Rourke, to apply, by way of judicial review, for, inter alia, the following reliefs: (a) an order of certiorari quashing the notification/direction of the respondent, the Department of Education and Skills, made on the 15 May 2017, advising the applicant, inter alia, that he was no longer a member of the Secondary, Community and Comprehensive School Teachers Pension Scheme 2009; (b) an order of certiorari quashing the notification/direction of the respondent, made on the 15 May 2017, advising the applicant, inter alia, that his employment with the respondent had terminated on 11 October 2013 and had recommenced after a break of 57 weeks, on 17 November 2014; and (c) an order of certiorari quashing the notification/direction of the respondent, made on the 15 May 2017, advising the applicant that he had been enrolled on the Single Pension Scheme, on 17 November 2014. The following issues had to be determined: (1) Was it lawful for the respondent to remove the applicant from the 2009 Pension Scheme and enrol him in the Single Pension Scheme? How the 57 week period, between October, 2013 and November, 2014, was legally characterised was central to answering this; and (2) For the purposes of O. 84, r. 21 of the Rules of the Superior Courts (RSC), did the three-month period of time start to run from 15 September 2016, when he received his first payslip indicating that his most recent pension contribution had been attributed to a Single Pension Scheme? If so then, as application for leave was not made until 24 July 2017, these proceedings were out of time.

Held by Meenan J that the applicant did not cease “to serve in a public body” and, as there was no such break in his service, he was wrongfully removed from the 2009 Pension Scheme. Given this conclusion, Meenan J held that he did not have consider whether the applicant was entitled to avail of the provisions of s. 10(5)(a) of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012. Meenan J held that the pension reduction referred to in the payslip of September, 2016 undoubtedly put the applicant on notice of a decision adverse to his interests. Meenan J noted that the applicant followed this matter up with enquiries both to the respondent and the Revenue, culminating in a letter from his Solicitor to the respondent, dated 5 April 2017. Meenan J noted that the respondent replied by letter, dated 15 May 2017, wherein it was made clear that the reason why the pension deduction had been made in the payslips in September, 2016 was that under the 2012 Act the respondent was enrolled in the Single Pension Scheme and was no longer a member of the 2009 Pension Scheme. Meenan J was satisfied that this was the point in time when the three months for the purposes of O. 84, r. 21 of RSC began to run. Meenan J held that, as the application was made in July, 2017, the applicant was not out of time.

Meenan J held that the applicant was entitled to the reliefs sought.

Orders of certiorari granted.

JUDGMENT of Mr. Justice Meenan delivered on the 18th day of December, 2019

Background

1 As part of the response to the recent financial crisis that engulfed the State, legislation was introduced with a view to reducing the cost of public sector salaries and pensions. The central issue in these proceedings are the changes, concerning public service pensions, that were brought about by the provisions of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 (the Act of 2012). There were a number of Financial Emergency Measures in the Public Interest Acts which were passed to reduce public salaries.

2 The applicant is a qualified post-primary teacher. He has worked as a technical subjects teacher at Wesley College, Ballinteer, Dublin 16, since Autumn, 2007. Prior to working in Wesley College, he completed a one year teaching placement for the academic year 2006 - 2007 at the Patrician Brothers College, Newbridge, Co. Kildare.

3 From September, 2007 to September, 2016, the applicant was paid directly by Wesley College. The applicant was also informed that he could participate “in accordance with the terms of the department funded scheme for supervision and substitution, which covers the classes of teachers who are absent and for the supervision and care of pupils outside class hours”. The applicant participated and so, from 2007 onwards, he was employed as a substitute teacher and provided special needs education, teaching supervision, general supervision and performed substitution duties.

4 In 2016, the applicant was designated a regular part-time teacher, an incremental post of one year's duration.

5 The remuneration of teachers, including the applicant, was reduced by the Financial Emergency Measures in the Public Interest Act, 2013. There then followed a period of industrial unrest which, eventually, lead to the Haddington Road Agreement. As part of this Agreement, the supervision and substitution scheme referred to at para. 3 above was no longer optional and did not attract any payment. All teachers were required to participate in this scheme, except for those who were eligible to opt out. The applicant was not so eligible and continued to provide the said supervision and substitution duties without pay for a period of some 57 weeks between October, 2013 and November, 2014.

6 The applicant made provisions for his pension and enrolled in the Secondary, Community and Comprehensive School Teachers Pension Scheme 2009 (the 2009 Pension Scheme). On 1 January 2013, the Act of 2012 came into operation, the 2009 Pension Scheme was closed to new entrants and a new scheme, the Single Pension Scheme, was created. The terms of this pension scheme are less advantageous than those of the 2009 Pension Scheme. In the applicant's first payslip following his designation as a regular part-time teacher, it appeared that his most recent pension contribution had been attributed to the Single Pension Scheme. Thus, in effect, the applicant had been removed from the 2009 Pension Scheme and enrolled in the Single Pension Scheme created by the Act of 2012. The applicant believed that this was in error and, on contacting the respondent, was referred to Circular 0007/2013 which states: -

“existing employees who resign /retire and have a break in employment of 26 weeks or greater will be members of the single scheme on return to employment.”

7 The applicant sought legal advice and his Solicitor wrote to the respondent on 5 April 2017, stating: -

“In June, 2016 our client ceased to receive remuneration from Wesley and was appointed to a fully State paid RPT teaching position. To his surprise, he has since received payslips which appear to show he has been enrolled upon the single pension scheme.

This appears to be an error. Our client has received no notification of his disenrollment from the pension schemes of which he has been a member from 2007 up to June, 2016 and has not been notified of any reason why he should now be enrolled upon the single pension public services pension scheme.”

8 The respondent replied to this letter on 15 May 2017. This letter accepted that the applicant had been employed as a substitute teacher on various dates between 5 October 2006 and 11 October 2013. Referring to the period between October, 2013 and November, 2014, when the applicant, on his uncontradicted evidence, did supervision and substitution duties without pay, the letter stated as follows: -

“Mr. O'Rourke recommenced after a break in service of 57 weeks as a substitute teacher on 17th November, 2014 and was correctly put into the single public service pension scheme.”

9 The applicant states that he has never resigned or retired nor did he cease to perform supervision and substitution duties. He never ceased to serve as a teacher in Wesley College and maintains that he was wrongfully removed from the 2009 Pension Scheme and put into the...